Copyright Modernization Act

SUMMARY

(a) update the rights and protections of copyright owners to better address the challenges and opportunities of the Internet, so as to be in line with international standards;

(b) clarify Internet service providers’ liability and make the enabling of online copyright infringement itself an infringement of copyright;

(c) permit businesses, educators and libraries to make greater use of copyright material in digital form;

(d) allow educators and students to make greater use of copyright material;

(e) permit certain uses of copyright material by consumers;

(f) give photographers the same rights as other creators;

(g) ensure that it remains technologically neutral; and

(h) mandate its review by Parliament every five years.

Preamble

Whereas the Copyright Act is an important marketplace framework law and cultural policy instrument that, through clear, predictable and fair rules, supports creativity and innovation and affects many sectors of the knowledge economy;

Whereas advancements in and convergence of the information and communications technologies that link communities around the world present opportunities and challenges that are global in scope for the creation and use of copyright works or other subject-matter;

Whereas in the current digital era copyright protection is enhanced when countries adopt coordinated approaches, based on internationally recognized norms;

Whereas those norms are reflected in the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty, adopted in Geneva in 1996;

Whereas the exclusive rights in the Copyright Act provide rights holders with recognition, remuneration and the ability to assert their rights, and some limitations on those rights exist to further enhance users’ access to copyright works or other subject-matter;

Whereas the Government of Canada is committed to enhancing the protection of copyright works or other subject-matter, including through the recognition of technological protection measures, in a manner that promotes culture and innovation, competition and investment in the Canadian economy;

And whereas Canada’s ability to participate in a knowledge economy driven by innovation and network connectivity is fostered by encouraging the use of digital technologies for research and education;

Now, therefore, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

(2) Section 2 of the Act is amended by adding the following in alphabetical order:

“WCT country”

« pays partie au traité de l’ODA »

“WCT country” means a country that is a party to the WIPO Copyright Treaty, adopted in Geneva on December 20, 1996;

“WPPT country”

« pays partie au traité de l’OIEP »

“WPPT country” means a country that is a party to the WIPO Performances and Phonograms Treaty, adopted in Geneva on December 20, 1996;

3. Section 2.4 of the Act is amended by adding the following after subsection (1):

Marginal note:Communication to the public by telecommunication

(1.1) For the purposes of this Act, communication of a work or other subject-matter to the public by telecommunication includes making it available to the public by telecommunication in a way that allows a member of the public to have access to it from a place and at a time individually chosen by that member of the public.

4. Subsection 3(1) of the Act is amended by striking out “and” at the end of paragraph (h), by adding “and” at the end of paragraph (i) and by adding the following after paragraph (i):

(j) in the case of a work that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the copyright owner,

5. Subsections 5(1.01) to (1.03) of the Act are replaced by the following:

Marginal note:Protection for older works

(1.01) For the purposes of subsection (1), a country that becomes a Berne Convention country, a WCT country or a WTO Member after the date of the making or publication of a work is deemed to have been a Berne Convention country, a WCT country or a WTO Member, as the case may be, at that date, subject to subsection (1.02) and sections 33 to 33.2.

Marginal note:Limitation

(1.02) Subsection (1.01) does not confer copyright protection in Canada on a work whose term of copyright protection in the country referred to in that subsection had expired before that country became a Berne Convention country, a WCT country or a WTO Member, as the case may be.

Marginal note:Application of subsections (1.01) and (1.02)

(1.03) Subsections (1.01) and (1.02) apply, and are deemed to have applied, regardless of whether the country in question became a Berne Convention country, a WCT country or a WTO Member before or after the coming into force of those subsections.

Marginal note:1997, c. 24, s. 7

Marginal note:1997, c. 24, s. 10(1)

Marginal note:1997, c. 24, s. 14

8. The headings before section 15 of the Act are replaced by the following:

PART IICOPYRIGHT IN PERFORMERS’ PERFORMANCES, SOUND RECORDINGS AND COMMUNICATION SIGNALS AND MORAL RIGHTS IN PERFORMERS’ PERFORMANCES

Performers’ Rights

Copyright

9. (1) Section 15 of the Act is amended by adding the following after subsection (1):

Marginal note:Copyright in performer’s performance

(1.1) Subject to subsections (2.1) and (2.2), a performer’s copyright in the performer’s performance consists of the sole right to do the following acts in relation to the performer’s performance or any substantial part of it and to authorize any of those acts:

(a) if it is not fixed,

(i) to communicate it to the public by telecommunication,

(ii) to perform it in public, if it is communicated to the public by telecommunication otherwise than by communication signal, and

(iii) to fix it in any material form;

(b) if it is fixed in a sound recording, to reproduce that fixation;

(c) to rent out a sound recording of it;

(d) to make a sound recording of it available to the public by telecommunication in a way that allows a member of the public to have access to the sound recording from a place and at a time individually chosen by that member of the public and to communicate the sound recording to the public by telecommunication in that way; and

(e) if it is fixed in a sound recording that is in the form of a tangible object, to sell or otherwise transfer ownership of the tangible object, as long as that ownership has never previously been transferred in or outside Canada with the authorization of the owner of the copyright in the performer’s performance.

(2) Section 15 of the Act is amended by adding the following after subsection (2):

(ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in Canada; or

(c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from Canada by a broadcaster that has its headquarters in Canada.

(3) Section 15 of the Act is amended by adding the following before subsection (3):

Marginal note:Conditions for copyright

(2.2) Subsection (1.1) also applies if

(a) the performer’s performance takes place in a WPPT country;

(b) the performer’s performance is fixed in

(i) a sound recording whose maker, at the time of its first fixation,

(A) was a citizen or permanent resident of a WPPT country, in the case of a natural person, or

(B) had its headquarters in a WPPT country, in the case of a corporation, or

(ii) a sound recording whose first publication in a quantity sufficient to satisfy the reasonable demands of the public occurred in a WPPT country; or

(c) the performer’s performance is transmitted at the time of its performance by a communication signal broadcast from a WPPT country by a broadcaster that has its headquarters in that country.

(4) Section 15 of the Act is amended by adding the following after subsection (3):

Marginal note:Publication

(4) The first publication of a sound recording is deemed to have occurred in a WPPT country, despite an earlier publication elsewhere, if the interval between the publication in that WPPT country and the earlier publication does not exceed 30 days.

Moral Rights

Marginal note:Moral rights

17.1 (1) In the cases referred to in subsections 15(2.1) and (2.2), a performer of a live aural performance or a performance fixed in a sound recording has, subject to subsection 28.2(1), the right to the integrity of the performance, and — in connection with an act mentioned in subsection 15(1.1) or one for which the performer has a right to remuneration under section 19 — the right, if it is reasonable in the circumstances, to be associated with the performance as its performer by name or under a pseudonym and the right to remain anonymous.

Marginal note:No assignment of moral rights

(2) Moral rights may not be assigned but may be waived in whole or in part.

Marginal note:No waiver by assignment

(3) An assignment of copyright in a performer’s performance does not by itself constitute a waiver of any moral rights.

Marginal note:Effect of waiver

(4) If a waiver of any moral right is made in favour of an owner or a licensee of a copyright, it may be invoked by any person authorized by the owner or licensee to use the performer’s performance, unless there is an indication to the contrary in the waiver.

Marginal note:Application and term

17.2 (1) Subsection 17.1(1) applies only in respect of a performer’s performance that occurs after the coming into force of that subsection. The moral rights subsist for the same term as the copyright in that performer’s performance.

Marginal note:Succession

(2) The moral rights in respect of a performer’s performance pass, on the performer’s death, to

(a) the person to whom those rights are specifically bequeathed;

(b) if there is not a specific bequest of those moral rights and the performer dies testate in respect of the copyright in the performer’s performance, the person to whom that copyright is bequeathed; or

(c) if there is not a person as described in paragraph (a) or (b), the person entitled to any other property in respect of which the performer dies intestate.

Marginal note:Subsequent succession

(3) Subsection (2) applies, with any modifications that the circumstances require, on the death of any person who holds moral rights.